State Consumer Disputes Redressal Commission
Dr. Sanjay Laxman Sonwane , Medical ... vs Smt. Sangita Sanjay Pawar,Tq. Pachora, ... on 9 March, 2010
STATE CONSUMER DISPUTE REDRESSASL COMMISSION, STATE CONSUMER DISPUTE REDRESSASL COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD. Date of filing : .2005 Date of Order : 09.03.2010 FIRST APPEAL NO. 1291 OF 2005 IN COMPLAINT CASE NO. 06 OF 2005 DISTRICT CONSUMER FORUM: JALGAON. 1. Dr. Sanjay Laxman Sonwane Medical Officer, At & Post. Shendurni, Tq. Jamner, Dist. Jalgaon. 2. Medical officer, Prathamik Arogya Kendra, Jalgaon. Appellants -VERSUS- Smt. Sangita Sanjay Pawar R/o. At & Post. Ambetanda, Tq. Pachora, Dist. Jalgaon. Respondent Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Present: Adv. Shri. Nitin Chaudhari, for appellant.
None appeared for the respondent.
:: O R A L O R D E R ::
Per Shri S. G. Deshmukh, Hon`ble Preiding Judicial Member
1. The present appeal is filed by the original opponent against the judgment and order dated 30.05.2005 in complaint case No.06/2005 passed by District Consumer Forum, Jalgaon.
2. The respondent/complainants case before the Forum is that, she had under gone Tubuctomy operation performed by the appellant on 10.06.2000.
It is contended that, in spite operation she gave birth to male child on 09.11.2004. It is contended that in spite of Tubuctomy operation performed by appellant she conceived and gave birth to the child which amounts to deficiency in service on the part of appellant thus, she approached the Forum.
3. The present appellant appeared before the Forum and resisted the claim. Appellant did not dispute the fact of operation conducted by him on complainant at Cottage Hospital, Shendurni.
It is contended that service of sterilization operation is done on free of cost and was paid incentive amount. It is also contended that there are some chances of failure of operation for which the operating surgeon will not be held responsible. Operation was done with utmost care and precaution.
4. Forum below after going through the papers and hearing the parties allowed the complaint and directed the appellant to pay Rs. 25,000/- towards the compensation by way of mental distress and financial hardship caused to the complainant. Forum also directed the appellant to pay Rs.1500/- to the complainant towards cost.
5. Being aggrieved by the said judgment and order original opponent came in appeal.
6. Notices were issued to the appellant as well as the respondent Under Certificate of Posting. The learned counsel Shri. Nitin Chaudhari, appeared for the appellant. None appeared for the respondent.
8. We heard learned counsels Shri. Nitin Choudhary. We perused the papers. There is no dispute that, the complainant had undergone Tubuctomy operation on 10.06.2000. There is also no dispute that in spite of Tubuctomy operation performed by the appellant, the complainant conceived and gave birth to female child on 09.11.2004.
7. In State of Punjab Vs. Shiv Ram & others, reported in 2005 (5) ALL MR (S.C.) 1090. The Honble Supreme Court has held that merely because woman having undergone sterilization operation became pregnant and delivered a child, an operating surgeon cannot be held liable for compensation on account of unwanted pregnancy or child. Claim in tort is sustainable only if there was negligence on the part of surgeon in performing surgery or surgeon assured 100% exclusion of pregnancy after surgery. It is further observed that the proof of negligence shall have to satisfy Bolams test. Cause of action for claiming compensation in failed sterilization operation arises on account of negligence of operating surgeon and not on account of child birth. Honble Supreme Court also observed that the methods of sterilization so far known to the medical science which are most popular and prevalent are not 100% safe and secure. In spite of operation having been successfully performed and without negligence on the part of operating surgeon, the sterilized woman can become pregnant due to natural causes. Failure due to natural causes would not provide ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing such a child cannot be claimed.
8. In State of Haryna & Oths. Vs. Raja Rani- III (2005) CPJ 28 (S.C.) It is held that, doctor can be held liable only in cases where failure of operation attributable to his negligence and not otherwise. Medical sciences recognized percentage of failure of sterilization operation due to natural causes depending on techniques chosen for performing surgery. Pregnancy can be for reasons for de hors any negligence of surgeon. Fallopian tubes cut and sealed may reunite and woman may conceive though surgery performed. Surgeon cannot be held liable to pay compensation.
9. In the instant case, there is no evidence to show that surgeon assured 100% exclusion of pregnancy after surgery. Medical sciences recognize failure of sterilization operation to the extent of 0.3 % to 3.00% and the consequences after failure of operation that a woman is under go operation. Forum did not consider this aspect and erred in allowing the complaint. In view of the well settled legal position by Honble Apex Court we are of the opinion that, the impugned judgment and order is required to be set aside. We pass following order.
* O R D E R *
1. Appeal is allowed.
2. The judgment and order passed by the Forum is hereby quashed and set aside.
3. Complaint stands dismissed.
4. Copy of the order be furnished to the parties.
(Mrs. Uma S. Bora) (S. G. Deshmukh) Member Presiding Judicial Member Kalyankar